Case 2:13-cv RJS Document 16 Filed 08/12/13 Page 1 of 14

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1 Case 2:13-cv RJS Document 16 Filed 08/12/13 Page 1 of 14 PHILIP S. LOTT (5750) STANFORD E. PURSER (13440) Assistant Utah Attorneys General JOHN E. SWALLOW (5802) Utah Attorney General 160 East 300 South, Sixth Floor P.O. Box Salt Lake City, Utah Telephone: (801) Facsimile: (801) phillott@utah.gov spurser@utah.gov Attorneys for Defendants Gary R. Herbert and John E. Swallow IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH, CENTRAL DIVISION DEREK KITCHEN, individually; MOUDI SBEITY, individually; KAREN ARCHER, individually; KATE CALL, individually; LAURIE WOOD, individually; and KODY PARTRIDGE, individually, Plaintiffs, vs. UTAH STATE DEFENDANTS ANSWER Civil Case No. 2:13-cv RJS Judge Robert J. Shelby GARY R. HERBERT, in his official capacity as Governor of Utah; JOHN SWALLOW, in his official capacity as Attorney General of Utah; and SHERRIE SWENSEN, in her official capacity as Clerk of Salt Lake County, Defendants. Utah State Defendants Governor Gary R. Herbert and Attorney General John E. Swallow, by and through their counsel of record, pursuant to Federal Rule of Civil Procedure 8, hereby answer the Plaintiffs Complaint for Declaratory and Injunctive Relief as follows:

2 Case 2:13-cv RJS Document 16 Filed 08/12/13 Page 2 of 14 INTRODUCTION 1. State Defendants deny the allegations contained in paragraph 1 of Plaintiffs The quotations of legal authority in paragraph 1 do not constitute factual allegations and require no answer. 2. Paragraph 2 of Plaintiffs Complaint summarizes the requested relief and need not be admitted or denied. JURISDICTION AND VENUE 3. State Defendants deny that the court has jurisdiction over the issues presented in Plaintiffs 4. State Defendants are without sufficient knowledge to admit or deny the allegations contained in paragraph 4 of Plaintiffs NATURE OF THE CASE 5. To the extent paragraph 5 of Plaintiffs Complaint contains any allegations they are denied. To the extent paragraph 5 summarizes the relief requested by Plaintiffs, it contains no allegations of fact requiring an answer. 6. To the extent paragraph 6 of Plaintiffs Complaint contains any allegations they are denied. To the extent paragraph 6 summarizes the relief requested by Plaintiffs, it contains no allegations of fact requiring an answer. Defendants object to the non-statutory, argumentative term Marriage Discrimination Statutes. 7. State Defendants are without sufficient knowledge to admit or deny the allegations regarding the Plaintiffs contained in paragraph 7 of Plaintiffs State 2

3 Case 2:13-cv RJS Document 16 Filed 08/12/13 Page 3 of 14 Defendants deny that Plaintiffs are being denied any constitutionally protected rights. 8. State Defendants are without sufficient knowledge to admit or deny the allegations regarding the Plaintiffs contained in paragraph 8 of Plaintiffs State Defendants deny that Plaintiffs are being denied any constitutionally protected rights. 9. State Defendants deny that Plaintiffs are asserting any enforceable rights in their To the extent paragraph 9 summarizes the relief requested by Plaintiffs, it contains no allegations of fact requiring an answer. PARTIES 10. State Defendants are without sufficient knowledge to admit or deny the allegations contained in paragraph 10 of Plaintiffs 11. State Defendants are without sufficient knowledge to admit or deny the allegations contained in paragraph 11 of Plaintiffs 12. State Defendants are without sufficient knowledge to admit or deny the allegations contained in paragraph 12 of Plaintiffs 13. State Defendants are without sufficient knowledge to admit or deny the allegations contained in paragraph 13 of Plaintiffs 14. State Defendants are without sufficient knowledge to admit or deny the allegations contained in paragraph 14 of Plaintiffs 15. State Defendants are without sufficient knowledge to admit or deny the allegations contained in paragraph 15 of Plaintiffs 16. State Defendants admit the allegations contained in paragraph 16 of Plaintiffs 3

4 Case 2:13-cv RJS Document 16 Filed 08/12/13 Page 4 of State Defendants admit the allegations contained in paragraph 17 of Plaintiffs 18. State Defendants are without sufficient knowledge to admit or deny the allegations contained in paragraph 18 of Plaintiffs 19. State Defendants admit that they are responsible for the enforcement of Utah law. Defendants object to the non-statutory, argumentative term Marriage Discrimination Statutes. To the extent paragraph 19 summarizes the relief requested by Plaintiffs, it contains no allegations of fact requiring an answer. FACTUAL BACKGROUND 20. State Defendants are without sufficient knowledge to admit or deny the allegations contained in paragraph 20 of Plaintiffs 21. State Defendants deny the allegations contained in the first sentence of paragraph 21 of Plaintiffs State Defendants are without sufficient knowledge to admit or deny the allegations contained in the second sentence of paragraph 21 of Plaintiffs 22. State Defendants admit the allegations contained in paragraph 22 of Plaintiffs 23. State Defendants are without sufficient knowledge to admit or deny the allegations contained in paragraph 23 of Plaintiffs 24. State Defendants are without sufficient knowledge to admit or deny the allegations contained in paragraph 24 of Plaintiffs State Defendants affirmatively state that the Massachusetts Constitution is not at issue in this action and that the cited Massachusetts decision speaks for itself. 4

5 Case 2:13-cv RJS Document 16 Filed 08/12/13 Page 5 of State Defendants admit that the Utah Constitution provides a democratic process to amend the Utah Constitution. State Defendants are without sufficient knowledge to admit or deny any other allegations contained in paragraph 25 of Plaintiffs 26. State Defendants admit the allegations contained in paragraph 26 of Plaintiffs Complaint except that State Defendants are without sufficient knowledge to admit or deny the allegations contained in the last sentence of paragraph 26 of Plaintiffs 27. State Defendants admit the allegations contained in the first sentence of paragraph 27 of Plaintiffs State Defendants admit that a Utah Voter Information Pamphlet was prepared under the direction of the Lieutenant Governor and that the Pamphlet speaks for itself. 28. State Defendants deny the allegations contained in paragraph 28 of Plaintiffs 29. State Defendants affirmatively state that some proponents and some opponents of Amendment 3 were given space in the Utah Voter Information Pamphlet to state their own individual arguments both for and against Amendment 3. State Defendants deny that the arguments either for or against constitute the express and stated purpose of Amendment 3. State Defendants, further, affirmatively state that Plaintiffs mischaracterize the source of the first quoted language. In full, the quote clearly identifies the source as being a court opinion from the Eleventh Circuit Court of Appeals: Earlier this year, the Federal Eleventh Circuit Court of Appeals upheld Florida's ban on homosexual adoptions. The Court unequivocally recognized government's strong interest in maintaining public morality, the justified preference for heterosexual marriage with its capacity to perpetuate the human race and the importance of raising children in that preferred relationship Utah Voter Information Pamphlet, Arguments for Constitutional Amendment 3, at 36. 5

6 Case 2:13-cv RJS Document 16 Filed 08/12/13 Page 6 of 14 The second quote, in full, states: Id. Social stability has always depended on strong marriages. Many families, of course, face difficult challenges, including divorce and the absence of a father or a mother. These challenges, however, are no reason to abandon the ideal relationship where men, women and children thrive best and that is an enduring natural marriage between a man and a woman. State Defendants deny that the express and stated purpose of Amendment 3 was to further privately-held moral views that same-sex couples were not moral and were inferior to heterosexual couples. State Defendants deny the remaining allegations in paragraph 29 of Plaintiffs 30. State Defendants admit that, although under Article 23 of the Utah Constitution only a simple majority was required for passage of Amendment 3, 65.9% of Utah voters approved the Amendment. 31. State Defendants are without sufficient knowledge to admit or deny whether any same-sex couples have been denied marriage licenses in Utah. State Defendants affirmatively state, however, that same-sex marriage has never been recognized in Utah and that it is the public policy of Utah to recognize as marriage only the legal union of a man and a woman. State Defendants admit same-sex marriages performed in other jurisdictions are not recognized in Utah. State Defendants deny the remaining allegations in paragraph 31 of Plaintiffs 32. State Defendants affirmatively state that same-sex marriage has never been recognized in Utah. State Defendants admit that Utah law and its constitution define marriage as the legal union between a man and a woman and do not recognize same-sex marriages, among other types of marriages, performed in Utah or other jurisdictions. State Defendants admit that 6

7 Case 2:13-cv RJS Document 16 Filed 08/12/13 Page 7 of 14 unmarried couples or groups of any kind heterosexual, homosexual, polygamous, etc. are not granted certain rights afforded married couples. Utah law, however, does not impair[] any contract or other rights, benefits, or duties that are enforceable independently of being married. Utah Code Ann (2). State Defendants deny all other allegations in paragraph 32 of Plaintiffs Paragraphs 33 to 35 of Plaintiffs Complaint contain legal argument, which does not require an answer. Nonetheless, State Defendants deny that same-sex marriage is a constitutionally protected right and deny any other allegations contained in paragraphs 33 to 35 of Plaintiffs 36. State Defendants are without sufficient knowledge to admit or deny the allegations regarding Plaintiffs, their same-sex relationships, and desire to be married contained in paragraph 36 of Plaintiffs State Defendants admit that same-sex couples cannot be married under Utah law. 37. State Defendants are without sufficient knowledge to admit or deny the allegations contained in paragraph 37 of Plaintiffs 38. State Defendants are without sufficient knowledge to admit or deny the allegations contained in paragraph 38 of Plaintiffs 39. State Defendants are without sufficient knowledge to admit or deny the allegations regarding who Plaintiffs wish to marry contained in paragraph 39 of Plaintiffs State Defendants admit that same-sex couples cannot be married under Utah law. 40. State Defendants deny that Plaintiffs inability to marry a person of the same sex deprives them of any constitutional rights. State Defendants are without sufficient knowledge to 7

8 Case 2:13-cv RJS Document 16 Filed 08/12/13 Page 8 of 14 admit or deny any other allegations contained in paragraph 40 of Plaintiffs 41. State Defendants deny the allegations contained in paragraph 41 of Plaintiffs 42. State Defendants deny the allegations contained in the first sentence of paragraph 42 of Plaintiffs The rest of paragraph 42 of Plaintiffs Complaint contains legal argument and/or assertions that do not require an answer. CLAIMS FOR RELIEF FIRST CLAIM FOR RELIEF 43. State Defendants incorporate by reference all the preceding answers contained in paragraphs 1 through 42 above. 44. Paragraph 44 of Plaintiffs Complaint contains only legal assertions and does not require an answer but State Defendants do not deny the contents of the Due Process Clause of the Fourteenth Amendment as stated in controlling precedent. 45. State Defendants deny the allegations contained in paragraph 45 of Plaintiffs 46. State Defendants admit that marriage between a man and a woman is a constitutionally protected fundamental right and/or liberty interest but deny any other allegations contained in paragraph 46 of Plaintiffs 47. State Defendants deny the allegations contained in paragraph 47 of Plaintiffs 48. State Defendants deny the allegations contained in paragraph 48 of Plaintiffs There is no constitutionally protected right for same-sex marriage. 8

9 Case 2:13-cv RJS Document 16 Filed 08/12/13 Page 9 of State Defendants deny the allegations contained in paragraph 49 of Plaintiffs State Defendants deny that strict scrutiny applies to Plaintiffs claims. 50. To the extent paragraph 50 of Plaintiffs Complaint contains any allegations they are denied by the State Defendants. SECOND CLAIM FOR RELIEF 51. State Defendants incorporate by reference all the preceding answers contained in paragraphs 1 through 50 above. 52. Paragraph 52 of Plaintiffs Complaint contains only legal assertions and does not require an answer but State Defendants do not deny the contents of the Equal Protection Clause of the Fourteenth Amendment as stated in controlling precedent. 53. State Defendants deny the allegations contained in paragraph 53 of Plaintiffs 54. State Defendants deny the allegations contained in paragraph 54 of Plaintiffs Controlling precedent has established that sexual orientation does not implicate a protected class to which heightened scrutiny applies. Price-Cornelison v. Brooks, 524 F.3d 1103 (10 th Cir. 2008). 55. State Defendants deny the allegations contained in paragraph 55 of Plaintiffs 56. State Defendants deny the allegations contained in paragraph 56 of Plaintiffs 57. State Defendants deny the allegations contained in paragraph 57 of Plaintiffs 9

10 Case 2:13-cv RJS Document 16 Filed 08/12/13 Page 10 of State Defendants affirmatively state that same-sex marriage has never been recognized in Utah. State Defendants admit that Utah law and its constitution define marriage as the legal union between a man and a woman and do not recognize same-sex marriages, among other types of marriages, performed in Utah or other jurisdictions. State Defendants admit that unmarried couples or groups of any kind heterosexual, homosexual, polygamous, etc. are not granted certain rights afforded married couples. Utah law, however, does not impair[] any contract or other rights, benefits, or duties that are enforceable independently of being married. Utah Code Ann (2). State Defendants deny all other allegations in paragraph 58 of Plaintiffs 59. State Defendants deny the allegations contained in paragraph 59 of Plaintiffs 60. State Defendants deny the allegations contained in paragraph 60 of Plaintiffs Utah law prevents neither homosexuals nor lesbians from marrying. Homosexuals and lesbians may marry in Utah, but they face the same restriction heterosexuals do they may not marry a person of the same sex. This restriction is not gender based it applies equally to both males and females. 61. To the extent paragraph 61 of Plaintiffs Complaint contains any allegations they are denied by the State Defendants. THIRD CLAIM FOR RELIEF 62. State Defendants incorporate by reference all the preceding answers contained in paragraphs 1 through 61 above. 63. State Defendants deny the allegations contained in paragraph 63 of Plaintiffs 10

11 Case 2:13-cv RJS Document 16 Filed 08/12/13 Page 11 of To the extent paragraph 64 of Plaintiffs Complaint contains any allegations they are denied by the State Defendants. FOURTH CLAIM FOR RELIEF 65. State Defendants incorporate by reference all the preceding answers contained in paragraphs 1 through 64 above. 66. State Defendants deny the allegations contained in paragraph 66 of Plaintiffs 67. State Defendants deny the allegations contained in paragraph 67 of Plaintiffs PRAYER FOR RELIEF Plaintiffs Prayer for Relief does not contain any factual allegations requiring an answer. ADDITIONAL DEFENSES The State Defendants assert the following separate defenses to the Complaint, without assuming the burden of proof or production on such defenses that would otherwise rest on the Plaintiffs. Moreover, State Defendants assert that there are or may be other defenses which are at this time unknown and, therefore, reserve the right to amend their Answer if appropriate and assert additional defenses. FIRST DEFENSE Plaintiffs Complaint fails to state a claim upon which relief may be granted. SECOND DEFENSE The Court lacks subject matter jurisdiction over the claims asserted in Plaintiffs 11

12 Case 2:13-cv RJS Document 16 Filed 08/12/13 Page 12 of 14 Complaint and/or the Complaint fails to raise a substantial federal question. Baker v. Nelson, 409 U.S. 810 (1972). THIRD DEFENSE Plaintiffs claims present a political question or are otherwise not justiciable. FOURTH DEFENSE Plaintiffs claims are barred by the Eleventh Amendment. U.S. CONST. amend XI. FIFTH DEFENSE Plaintiffs claims are barred by the Tenth Amendment. Utah has the sovereign right to define and regulate marriage. [T]he states, at the time of the adoption of the Constitution, possessed full power over the subject of marriage and divorce... [and] the Constitution delegated no authority to the Government of the United States on the subject of marriage and divorce. United States v. Windsor, 133 S.Ct. 2675, 2691 (2013) (quoting Haddock v. Haddock, 201 U.S. 562, 575 (1906)); see also In re Burrus, 136 U.S. 586, (1890), Ohio ex rel. Popovici v. Agler, 280 U.S. 379, (1930); U.S. CONST. amend. X. SIXTH DEFENSE Sexual orientation does not implicate a protected or suspect class to which heightened scrutiny applies. Price-Cornelison v. Brooks, 524 F.3d 1103 (10 th Cir. 2008). SEVENTH DEFENSE Same-sex marriage is not a constitutionally protected fundamental right or liberty interest. EIGHTH DEFENSE Any classification, resulting from Utah s recognition of marriage as only the legal union 12

13 Case 2:13-cv RJS Document 16 Filed 08/12/13 Page 13 of 14 between a man and a woman, is rationally related to a legitimate governmental interest. NINTH DEFENSE It is the public policy of Utah to recognize as marriage only the legal union between a man and a woman. Utah Code Ann ; UTAH CONST. art. 1, 29. TENTH DEFENSE Utah s recognition of marriage as only the legal union between a man and a woman does not violate the United States Constitution. ELEVENTH DEFENSE Plaintiffs claims are barred or limited by the provisions of the Utah Governmental Immunity Act, Utah Code Ann. 63G-7-101, et seq. PRAYER WHEREFORE, having fully answered Plaintiffs Complaint, the State Defendants pray that the same be dismissed with prejudice, for their costs, and for such other relief as to the Court seems just and equitable. Dated this 12 th day of August, JOHN E. SWALLOW Utah Attorney General /s/ Philip Lott Philip S. Lott Stanford E. Purser Assistant Utah Attorneys General Attorneys for Defendants Gary R. Herbert and John E. Swallow 13

14 Case 2:13-cv RJS Document 16 Filed 08/12/13 Page 14 of 14 CERTIFICATE OF SERVICE I hereby certify that on the 12 th day of August, 2013, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which sent notification of such filing to the following: Peggy A. Tomsic James E. Magleby Jennifer Fraser Parrish MAGLEBY & GREENWOOD, P.C. 170 South Main Street, Suite 850 Salt Lake City, UT Ralph Chamness Darcy M. Goddard Salt Lake County District Attorneys 2001 South State, S3500 Salt Lake City, Utah tomsic@mgplaw.com magleby@mgplaw.com parrish@mgplaw.com rchamness@slco.org dgoddard@slco.org /s/ Philip Lott 14